GMOs: Councils Consider Prohibiting Commercial Outdoor Uses

Councils To Consider
Prohibiting Commercial Outdoor Uses of GMOs in Northland and
Auckland And Requiring Consents For Outdoor Field
Trials

An inter-council working party,
representing all local authorities in Northland and
Auckland, has recommended to member councils that they
consider regulating the outdoor use of GMOs under the
Resource Management Act (RMA) through provisions in their
planning documents.

This would involve inserting
objectives, policies and rules in existing district plans in
Northland and in Auckland Council’s new Unitary Plan
prohibiting the release of genetically modified organisms
(GMOs) to the environment and making field trialing of GMOs
a discretionary activity, subject to strict liability
conditions for any environmental or economic harm that may
eventuate.

The Inter-council Working Party on GMO
Risk Evaluation and Management Options comprises the Far
North, Kaipara and Whangarei District Councils and Auckland
Council. Northland Regional Council is a member but did not
participate in the project. The Working Party has produced
draft planning provisions, a section 32 evaluation
supporting those provisions, and a legal opinion from Dr
Royden Somerville QC.

The section 32 evaluation is
a requirement under the RMA to show why the proposed
provisions are necessary to achieve the purpose of the Act
and that they are the most appropriate, efficient and
effective to achieve that purpose. The evaluation is also
required to take into account the costs and benefits of the
proposed provisions and the risk of acting or not acting if
there is uncertain or insufficient information about the
subject matter.

The Working Party has carried out a
thorough evaluation of the necessity for regulation of GMOs
at a district and/or regional level, in addition to national
regulation under the Hazardous Substances and New Organisms
Act (HSNO), over an extended period of 10 years.

This evaluation has confirmed there are potentially
significant risks to local government and their communities
from outdoor use of GMOs, including environmental, economic
and socio-cultural risks. There is also considerable
uncertainty (including scientific uncertainty) and lack of
information about those risks. There is a lack of scientific
agreement on the long term effects of releasing GMOs into
the environment and a lack of information on long term
environmental consequences. There is uncertainty and
disagreement as to the short and long term economic benefits
and dis-benefits from GMO crops and animals. And there are
different cultural views as to the appropriateness of GM
technology and GMOs, particularly from Maori.

In
addition, the potential adverse effects of releasing GMOs
into the environment could be significant – including
possible major (and long term) harm. Moreover, these effects
could be irreversible. Once released to the environment it
is, in most instances, impossible to eradicate such
organisms. They are, in effect, there for ever, whatever the
consequences.

Against these risks, significant
deficiencies in the national level regulation of GMOs have
been identified. A key gap is that there is no liability
under HSNO for damage arising as a result of an activity
carried out in accordance with an approval from the national
regulatory body, the Environmental Protection Authority
(EPA). Nor is there any requirement under HSNO for
applicants to prove financial fitness or provide bonds in
order to recover costs should damage occur.

Thus,
affected parties, including existing primary producers and
councils, will tend to bear any costs arising from
unexpected events and ineffective regulation of GMOs. Given
the experience overseas of widespread contamination of
non-GMO crops and rapid development of herbicide resistant
pests and weeds, these costs could be considerable.

In response to the risks and associated uncertainties,
along with community preferences for a precautionary
approach expressed in the Colmar Brunton survey commissioned
by the Working Party in 2009 and in public submissions to,
and lobbying of, councils in Northland/Auckland, the section
32 evaluation has concluded that a strong precautionary
approach to the release of GMOs to the environment is
warranted. Such an approach is legitimised by, and indeed
inherent to, the RMA. However, at the national level, HSNO
makes the exercise of precaution a matter for the EPA’s
discretion. The EPA is required only to consider the
necessity for caution.

In accord with a strong
precautionary approach, the section 32 evaluation supports
the prohibition of releases of GMOs to the environment and
the requirement for consent as a discretionary activity for
GMO field trials. The section 32 analysis also supports
provisions that set strict liability rules for potential
economic and environmental harm, to the extent possible, and
the requirement for bonds and proof of financial fitness.

However, the section 32 evaluation acknowledges the
desirability of keeping future options open, and thus
supports an adaptive risk management approach that would
enable on-going review of prohibiting the release of GMOs,
and the change of activity status to discretionary should
new information come available, or scientific consensus be
achieved, that shows that the benefits of releasing a
particular GMO, or class of GMOs, outweigh the risks for the
Northland/Auckland region.

Such a precautionary
approach to risk management is supported by the courts. In
particular, Coromandel Watchdog of Hauraki Inc v Chief
Executive of the Ministry of Economic Development (CA285/05
2007) examined the appropriate use of the prohibited
activity status in planning documents. In this case the
Court of Appeal held that prohibiting an activity could be
appropriate when a planning authority has insufficient
information about an activity and wishes to take a
precautionary approach, even though it does not rule out the
possibility of that activity being permitted in the future
when further information may become available.

The draft plan provisions are in the form of a plan
change to councils’ RMA planning documents. The provisions
are in a generic form that can be adapted to each
council’s particular plan should it choose to undertake
such a plan change. The provisions apply to land uses and to
use of coastal waters. The plan provisions relate only to
outdoor uses of GMOs, either releases to the environment or
outdoor field trials. They do not include the use of GMOs in
contained facilities, such as hospitals, universities, or
research institutions, nor to medicines or food products
that do not contain viable GMOs.

The documentation
will now be referred to member councils on the Working Party
for decisions on how to proceed from here. Should a decision
be made to include provisions in council’s planning
documents, further consultation is required prior to
publically notifying any changes.

Dr Kerry Grundy,
convener of the Working Party, states:

“The
collaborative approach to the issue of GMOs in the
environment undertaken by local authorities in the Northland
and Auckland regions has been a cautious yet responsible way
to proceed with this contentious and complex issue. It is an
excellent example of local government working together to
address common concerns raised by their respective
communities.

“The comprehensive evaluation that
has been undertaken over a long period of time, and the
documentation produced as a result of that evaluation,
provides a robust and comprehensive examination of the issue
of GMOs in the environment, including both the risks arising
from the outdoor use of GMOs and options to manage those
risks.

“The documentation provides councils on
the Inter-council Working Party on GMO Risk Evaluation and
Management Options with sufficient information to make an
informed decision over management options for outdoor uses
of GMOs and sufficient analysis and support to proceed with
a change to district and/or unitary plans to manage GMOs
should councils decide to undertake such an
approach”.

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